19 Kan. 95 | Kan. | 1877
The opinion of the court was delivered by
The following is a general statement of the facts in this case: In August and September 1874, the plaintiffs in error, who were constables of Shawnee county, held several executions issued by justices of the peace of said county on judgments against the Topeka Rolling-Mill Company, a corporation doing business in North Topeka. The executions amounted in all to $2,508.37; and certain iron, being in possession of the rolling-mill company, the constables levied upon it as the property of this company, to satisfy their executions. The iron was so held by them as such constables when the K. P. Rly. Co., on 23d September 1874, commenced this action in the court below in replevin to recover the possession of the property. The said personal property was described in the petition as follows: “The specific mass of railroad iron, in bars or flats, amounting in weight to about three hundred tons, now stacked in North Topeka, near to and south of the track of K. P. Rly. Co., and about one hundred and fifty yards east of its depot, in North Topeka aforesaid, being all the railroad iron stacked i» such locality.” The railway company claimed to be the owner of the iron, and that the rolling-mill company was only its bailee. The proof tended to show that the railway company, having a large quantity of old and worn-out railroad iron which it wished to utilize, entered into a contract with the rolling-mill company by which the latter company would re-roll into new bars or rails the old iron delivered to it, and put in a certain amount of new iron, called “head-iron,” to form the head, or top of the rails. The course of business was to weigh in the old iron, cut it up, heat several pieces together to a welding'heat, roll it into flat pieces, add the new
The first question is, as'to the character of the transaction between the railway and rolling-mill companies. Counsel for plaintiffs in error contends that it was what the civilians would call a mutuum, rather than a regular bailment; that the iron in the possession of the rolling-mill company was what the Scotch and French lawyers denominate a fungible; that by the delivery of the iron by the railway company to the rolling-mill company, the title passed to the latter; that the obligation to deliver new rails to the railway company on payment or tender of the price of re-rolling became á debt, and therefore, that the personal property levied upon was liable to be sold to pay the judgments against such rolling-mill company. Said counsel assigns as error the holding of the court below, that the transaction between the companies was a bailment under that subdivision designated by Sir William Jones in his work on bailments as loeatio opens faeiendi, and classified by Pothier, in his definition of contract of hire, as a regular contract of hire, that is, that contract of- hire where the specific thing which is let to hire is to be returned. We think that the learned counsel misconceives the law as applicable to the facts discussed, from an attempt to marshal the case nolens volens, within the definition of the mutuum of the Romans, because it differs slightly from the common bail
In the case at bar, old rails, as the material, were furnished by the railway company to the rolling-mill company to manufacture into new rails; and in view of the above authorities, and the conclusion we have reached, it was important on the trial to show how much old and how much new iron entered into the new rails. The court below seems to have assumed that the accessorial material added by the rolling-mill company in the way of new iron, which formed the top of the rail, was the lesser part of the iron used in the manufacture of the rails; and such, perhaps, was the case. But the district court committed error in assuming such to be the fact, and in refusing to permit the plaintiffs in error to prove the materials of the new rails.
While the witness Coldren was upon the stand, after having testified concerning the process undergone by the Kansas Pacific railway iron in being made into new rails, and that he was familiar with the details of the business of the manufacture of the new rails, he was asked on cross-examination: “How much new iron did you put in with the old, in the process of manufacturing these old rails of the Kansas Pacific Railway Company into new ones?” The defendant in error objected to the question, and the court refused to allow the question to be asked, or answered. The question was pertinent and important. Its rejection by the court was substantial error, and prejudicial to the rights of the plaintiff in error. It is probable, if the witness, who was the president of the rolling-mill company, had answered the interrogatory, it would have been fully established that the material furnished by the railway company formed the chief portion of the new rails; but this is only a presumption from other
The judgment will be reversed, and a new trial awarded.